Small business: Flexible working - Bridget Smith

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Bridget Smith, partner Swarbrick, Beck, Mackinnon, (SBM Legal), employment law and human resource specialists talks about the legal issues around offering flexible working to staff

Lawyer Bridget Smith of Swarbrick Beck Mackinnon.
Lawyer Bridget Smith of Swarbrick Beck Mackinnon.

What are the current obligations on NZ employers to offer flexible working hours?

Currently, the Employment Relations Act 2000 allows employees who are responsible for the care of any person, to request flexible working hours. A request can be made once a year and there are other limitations. The employer is not obliged to agree to a request and the grounds for refusing are relatively broad. So the legal obligations on an employer are not at all onerous.

Despite this, forward thinking employers are considering requests for flexible working arrangements outside of their strict legislative obligations. They are not limiting flexible working arrangements to employees with care commitments and are looking at applications with a view to finding a way to make them work rather than a reason to say no.

An increased focus on this area is also reflected in the fact that the proposed changes to the Employment Relations Act include a proposed extension of the right to request flexible working hours, to all employees (not just those with care responsibilities).

What are the pitfalls to business owners of offering flexible working hours?

The most common issue with flexible working hours is what to do if it doesn't suit the parties once it starts. The Employment Relations Act requires an employee making a request to specify whether the variation requested is permanent or for a period of time. As part of that, the employee is required to specify when the request is to commence, and if it is for a period of time, when it is intended it would end. We recommend that the parties agree a review period, so that they can properly assess whether the arrangements suit them both and/or whether there should be changes.

Where an employer is considering or agreeing to flexible working arrangements that are not covered by the Act, there is greater flexibility for both parties in terms of what is agreed. In those circumstances it is definitely prudent to trial the arrangements in the first instance and to agree regular reviews. The key from a business perspective is clearly to maintain sufficient flexibility for the employer that if the business gets busier or needs change, any arrangements can be adjusted to adapt to the changing circumstances.

If the employer agrees to a request for one, do they have to do it for all?

As is the case with almost all aspects of employment law, each request should be assessed according to the particular facts and circumstances.

If it sets any sort of precedent it should only be that the employer will fully and fairly consider all requests and will make a decision based on the circumstances at the time.

What types of organisations are considering flexible working arrangements?

Any organisation that wants to attract and retain talented people will have to be open to considering flexible working arrangements. With the development of technology and communication systems -UFB for remote access, smart phones, iPads, laptops and other devices- it is becoming increasingly unnecessary for people to all sit together in an office and so flexible arrangements are becoming more workable and indeed beneficial.

Working remotely may remove issues with travel time and cost, as well as office space requirements. However, it is not all about technology and there are a number of issues to consider. Employers need to remember that an employee's home office is a place of work, so health and safety obligations apply and there is also the need to consider office/social dynamics and the internal cultural impact of any arrangements.

As with anything, the more valuable an employee, the more likely it is that an employer will accommodate flexibility. The key is to make sure that it works for everyone.

Of course, underpinning all employment relationships is the concept of "good faith' so it is incumbent on both parties to try to make the relationship work and to promptly raise and address any issues.


Next week, we are looking at professional businesses such as dentists, doctors, accountants who are thinking outside the box to expand their practices. Tell us your stories.

- NZ Herald

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